PER CURIAM.
Defendant Butterball Farms, Inc. appeals by leave granted the trial court?s denial of its
motion for summary disposition as to plaintiff?s claims of assault and battery, negligent hiring,
and violation of the Civil Rights Act, MCL 37.2101 et seq. We reverse and remand for entry of
an order granting summary disposition in favor of defendant.
Plaintiff, a Haitian immigrant, was employed by defendant as a production employee for
nine months. Because defendant manufactures food products, production employees are
prohibited from having facial hair. When plaintiff came to work unshaven, he was separately
approached by two supervisors who informed him that he would have to come off the production
line and go home to shave. When plaintiff did not leave, his immediate supervisor, team leader
Michelle McDaniels, informed him that he must go home to shave, but that he could return to
work later that day when he was clean-shaven. Plaintiff became angry, loud, and verbally
aggressive, and refused to leave. McDaniels asked processing team leader defendant Louis
Sanders to assist her in calming plaintiff down and persuading him to go home to shave. Sanders
did so, and plaintiff went to the locker room to retrieve his belongings. After five minutes
elapsed, McDaniels asked Sanders to make sure plaintiff had left the premises. Plaintiff and
Sanders have differing accounts of the events that transpired next.
According to Sanders, when he was headed to the locker room to make sure plaintiff was
gone, he encountered plaintiff at the front office door. Plaintiff was making ?weird accusations,?

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and then ?just went to kicking . . . and swinging.? When plaintiff attempted to kick Sanders in
the groin area, Sanders wrapped his arms around plaintiff to prevent him from hitting or
swinging again. Plaintiff ?head-butted? Sanders, and the two men fell to the floor. Plaintiff?s
head struck the ground, and Sanders landed on top of him.
According to plaintiff, Sanders followed him to the locker room and attacked him from
behind. Sanders hit him on the back of his neck and he fell. Sanders picked plaintiff up and
struck his head against a step. Plaintiff ran up the stairs, and Sanders chased after him, hitting
him repeatedly.
In any event, the police were called and plaintiff was taken to the hospital, where he
received treatment for injuries sustained in the altercation. According to plaintiff, ?they put
some clamps on his face? where he had been hit, and ?gave [him] a shot and they did a lot of
things.?
It was later discovered that there was a possible motive for plaintiff to attack Sanders.
Plaintiff?s wallet had been stolen from the locker room a few days before the incident. At the
time, the only other people in the locker room were Sanders and Kurt Tolliver, a co-worker.
Following plaintiff?s attack on Sanders, Tolliver admitted that he had taken plaintiff?s wallet, and
speculated that plaintiff believed Sanders had stolen the wallet, and that plaintiff?s attack on
Sanders was retribution for the theft.
Following the incident, plaintiff was terminated. Carol Schipper, assistant to the
operations manager, testified that after speaking with second-shift team leader coordinator Diana
San Miguel, processing team leader Sanders, and the police, it was a ?logical decision? to
terminate plaintiff. Plaintiff testified that he was terminated over the phone.
Plaintiff brought suit against defendants Butterball Farms and Sanders, alleging: count I -
?assault and battery?; count II – ?intentional or negligent infliction of emotional distress?; count
III – ?intentional tort ? assault and battery ? per MCL 418.131(1)?; count IV – ?intentional tort ?
intentional infliction of emotional distress ? per MCL 418.131(1)?; count V – ?Elliott-Larsen
Civil Rights?; and count VI – ?negligence ? defendant Butterball.?
Butterball Farms moved for summary disposition pursuant to MCR 2.116(C)(8) and
(C)(10), for the following reasons:
1. Plaintiff?s assault and battery claims against Butterball (Counts I and III) must
be dismissed for the reason that they are preempted by the exclusive remedy
provisions of the Workers Disability Compensation Act. These claims should
also be dismissed for the further reason that Plaintiff cannot establish respondeat
superior liability against Butterball.
2. Plaintiff?s claim for negligent infliction of emotional distress against Butterball
(Count IV) again must be dismissed because it is preempted by the Workers
Disability Compensation Act. Further, this claim must be dismissed as a matter
of law because Plaintiff cannot establish any of the required elements.

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3. Plaintiff?s intentional infliction of emotional distress claim (Count II) must be
dismissed because Plaintiff has failed to show either extreme and outrageous
conduct or that he suffered severe emotional harm.
4. Plaintiff?s negligence claim against Butterball (Count VI) must also be
dismissed because it is preempted by the Workers Disability Compensation Act.
5. Plaintiff?s Elliot[t]-Larsen Civil Rights Act claim (Count V) must be dismissed
because Plaintiff cannot prove that Butterball?s legitimate, non-discriminatory
reason for Plaintiff?s termination, i.e., an attack and assault on a supervisor, was a
mere pretext for disability discrimination. Further, Plaintiff cannot prove that
Butterball did, in fact, discriminate against Plaintiff based on his ethnicity or
national origin.
Sanders moved for partial summary disposition on plaintiff?s claim against him for
intentional infliction of emotional distress and plaintiff?s claim against him under the Civil
Rights Act (CRA), MCL 37.2101 et seq.
Following a hearing on Butterball Farms? motion for summary disposition and Sanders?
motion for partial summary disposition, the trial court granted summary disposition in favor of
Sanders on plaintiff?s alleged violation of the CRA, and in favor of Butterball Farms and Sanders
on plaintiff?s claims of ?intentional and/or negligent infliction of emotional distress.? The trial
court further ordered that:
all other claims asserted and alleged by Plaintiff in his First-Amended Complaint
against Defendants remain, and, as such, Defendant Butterball Farms, Inc.?s
motion for summary disposition is denied as to Plaintiff?s claims against it for
assault and battery, violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101
et seq., and negligent hiring, supervision, retention, and/or training.
Butterball Farms appeals by leave granted the trial court?s partial denial of its motion for
summary disposition.
Defendant first argues that the trial court erred in denying its motion for summary
disposition regarding plaintiff?s assault and battery claim, because it is barred by the exclusive
remedy provision of the Worker?s Disability Compensation Act, MCL 418.131. We agree.
?Questions regarding the exclusive remedy provision of the Michigan Worker?s Disability
Compensation Act (WDCA) are reviewed pursuant to MCR 2.116(C)(4) to determine whether
the circuit court lacks subject-matter jurisdiction because the plaintiff?s claim is barred by the
provision.? Bock v General Motors Corp, 247 Mich App 705, 709-710; 637 NW2d 825 (2001);
Herbolsheimer v SMS Holding Co, Inc, 239 Mich App 236, 240; 608 NW2d 487 (2000).1 We

1 To the extent that defendant sought summary disposition pursuant to MCR 2.116(C)(8) and
(10), we note that where the record permits review under the correct subpart, the trial court?s
ruling on a motion for summary disposition under a different subpart does not preclude appellate
review according to the correct subpart. Meridian Mut Ins Co v Mason-Dixon Lines, Inc (On
(continued?)

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review de novo the grant or denial of a motion for summary disposition based on the WDCA
exclusive remedy provision. Bock, supra at 710. When reviewing a motion under MCR
2.116(C)(4), we must determine whether the pleadings demonstrate that the defendant was
entitled to judgment as a matter of law or whether the affidavits and other proofs show there was
no genuine issue of material fact. Id.; MCR 2.116(I)(1). Whether the facts alleged in the
pleadings are sufficient to constitute an intentional tort is a question of law for the court; whether
the facts alleged are in fact true is an issue for the jury. Travis v Dreis & Krump Mfg Co, 453
Mich 149, 154; 551 NW2d 132 (1996).
MCL 418.131(1) provides in pertinent part:
(1) The right to the recovery of benefits as provided in this act shall be the
employee?s exclusive remedy against the employer for a personal injury or
occupational disease. The only exception to this exclusive remedy is an
intentional tort. An intentional tort shall exist only when an employee is injured
as a result of a deliberate act of the employer and the employer specifically
intended an injury. An employer shall be deemed to have intended to injure if the
employer had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge.
Therefore, to invoke the intentional tort exception to the exclusive remedy provision of MCL
418.131(1), ?an employer must have made a conscious choice to injure an employee and have
deliberately acted or failed to act in furtherance of that intent.? Travis, supra at 180.
Additionally, ?the employer?s intent to injure [may] be inferred if the employer had actual
knowledge that an injury was certain to occur, under circumstances indicating deliberate
disregard of that knowledge.? Id.
Plaintiff argues that defendant knew about the alleged tortious act by Sanders but failed
to stop it. See Travis, supra at 169-170 (the phrase ?deliberate act? encompasses omissions,
where an employer consciously fails to act). However, even viewing the evidence in a light most
favorable to plaintiff, no evidence established that defendant acted with the specific intent to
injure plaintiff, or that it had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge. See id. at 174, 178-179. Even assuming the alleged assault
occurred as plaintiff described it, there is no factual support for the argument that defendant
authorized it or even knew it was going to occur. Therefore, the trial court erred in denying
defendant?s motion for summary disposition with respect to plaintiff?s claims of assault and
battery against defendant.2

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Defendant next argues that the trial court erred in denying its motion for summary
disposition regarding plaintiff?s negligent hiring claim. We agree, and find that plaintiff?s
negligent hiring claim is also barred by the exclusive remedy provision of the Worker?s
Disability Compensation Act, MCL 418.131. Downer v Detroit Receiving Hosp, 191 Mich App
232, 235; 477 NW2d 146 (1991). As discussed, supra, ?[t]he WDCA bars claims brought by
employees against their employer for injuries sustained in the course of employment unless the
claim is one for an intentional tort.? Id. And ?[a]n employer is deemed to have intended an
injury if it had actual knowledge that an injury was certain to occur and wil[l]fully disregarded
that knowledge.? Id.
In Downer, supra at 233, the plaintiff brought a claim against her employer for negligent
hiring after she was sexually harassed by one of the defendant?s employees. This Court held that
the trial court properly granted the defendant employer?s motion for summary disposition on the
negligent hiring claim because the plaintiff alleged that her employer acted negligently in hiring
the employee, but did not allege that her employer acted intentionally. Id. at 235-236. This
Court reasoned that because the plaintiff did not allege an intentional act on the part of the
employer, the negligent hiring claim was barred by the exclusive remedy provision of the
WDCA, MCL 418.131(1). Similarly, in the instant case, plaintiff alleged that defendant acted
negligently in hiring Sanders, but did not allege that defendant acted intentionally. Therefore,
plaintiff?s negligent hiring claim is barred by the exclusive remedy provision of the Worker?s
Disability Compensation Act, and the trial court erred in denying defendant?s motion for
summary disposition on this basis.
Defendant next argues that the trial court erred in denying its MCR 2.116(C)(10) motion
for summary disposition on plaintiff?s national origin discrimination claim under the Civil Rights
Act (CRA), MCL 37.2101 et seq. We agree, and find that plaintiff failed to present sufficient
evidence that discrimination was a determining factor in defendant?s decision to terminate his
employment.
We review de novo a trial court?s determination regarding a motion for summary
disposition. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). A motion under
MCR 2.116(C)(10) tests the factual support of a plaintiff?s claim. Auto-Owners Ins Co v Allied
Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d 685 (1999). ?In reviewing a
motion for summary disposition brought under MCR 2.116(C)(10), we considers the affidavits,
pleadings, depositions, admissions, or any other documentary evidence submitted in the light
most favorable to the nonmoving party to decide whether a genuine issue of material fact exists.?
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001). Summary
disposition is appropriate only if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Auto-Owners, supra at 397.
Pursuant to MCL 37.2202(1)(a), an employer shall not do any of the following:
Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
individual with respect to employment, compensation, or a term, condition, or
privilege of employment, because of religion, race, color, national origin, age,
sex, height, weight, or marital status.

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To establish a prima facie case of discrimination, a plaintiff must prove that he was: (1) a
member of a protected class; (2) subject to an adverse employment action; (3) qualified for the
position; and (4) discharged under circumstances that give rise to an inference of unlawful
discrimination. Lytle v Malady (On Rehearing), 458 Mich 153, 173; 579 NW2d 906 (1998). At
issue in this case is element four?whether plaintiff established that others, similarly situated and
outside the protected class, were unaffected by the employer?s adverse conduct. Town v
Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997). To show that an
employee was similarly situated, the plaintiff must prove that ??all of the relevant aspects? of his
employment situation were ?nearly identical? to those of [another employee?s] employment
situation.? Id. at 700.
Plaintiff maintains that he was similarly situated to Sanders, a non-Haitian employee who
was not discharged following the physical altercation, in the sense that both men were involved
in a physical altercation at work. However, ?similarly situated? typically means of the same rank
and employment history. See, e.g., Town, supra at 700. Thus, a more apt argument would have
been for plaintiff to compare himself to another employee of the same rank and employment
history that was involved in an altercation with an employee of higher rank and seniority, but
who was retained. Id. Plaintiff has come forward with no cases where employees of different
ranks involved in a common altercation were considered ?similarly situated? for purposes of a
discrimination claim, and ?a party may not leave it to this Court to search for authority to sustain
or reject its position.? In re Keifer, 159 Mich App 288, 294; 406 NW2d 217 (1987).
We find that plaintiff failed to present evidence showing that all of the relevant aspects of
his position were nearly identical to those of Sanders. Although plaintiff and Sanders were both
production employees, plaintiff had only been employed by defendant for nine months, whereas
Sanders was a team leader who had been employed by defendant for three years. Therefore,
plaintiff and Sanders were not similarly situated, and plaintiff has not created an inference of
disparate treatment. Moreover, plaintiff?s primary argument appears to be that he was
discriminated against because defendant chose to believe Sanders? account of the incident
instead of his account of the incident. However, there was no evidence that defendant
disbelieved Sanders? account of the incident and fired plaintiff nonetheless because he is Haitian.
Because plaintiff failed to present a prima facie case of national origin discrimination, the trial
court erred in denying defendant?s motion for summary disposition on this basis.
We reverse and remand for entry of an order granting summary disposition in favor of
defendant. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Richard A. Bandstra